Ron Paul’s campaign — Ron Paul 2012 Presidential Campaign Committee, Inc. — sued some John Doe defendants in federal court over an offensive video attacking former (but then current) opponent Jon Huntsman. The video demonstrated a gross insensitivity toward Chinese culture, and was posted to YouTube and promoted on Twitter by a user calling himself NHLiberty4Paul.

Since the campaign did not know the true identity of the John Doe defendants, it asked the court for leave to take “expedited discovery” so that it could serve subpoenas on YouTube and Twitter. (The Federal Rules of Civil Procedure do not allow early discovery like this unless the court specifically permits it.)

The court denied the campaign’s motion seeking early discovery. It held that the campaign failed to show the required “good cause” for expedited discovery set forth in the case of Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999).

Under the Seescandy.com standard, in determining whether there is good cause to allow expedited discovery to identify anonymous internet users named as Doe defendants, courts consider whether:

(1) the plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;

(2) the plaintiff has identified all previous steps taken to locate the elusive defendant;

(3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and

(4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.

The court found that the campaign failed to address these required issues. One is left to wonder whether there is enough of Paul’s campaign left to make it worthwhile to try again.

In a mass copyright infringement suit, plaintiff served a subpoena on an internet service provider and got the identifying information for the account holder suspected of trading a copy of a movie via BitTorrent. The account holder was uncooperative with plaintiff’s offers to settle, and denied downloading the file.

Instead of simply naming the identified account holder as a defendant in the case and proceeding with ordinary discovery, plaintiff asked the court for leave to take “expedited discovery,” namely, to depose the account holder to learn about:

the account holder’s involvement with the alleged distribution

his computers and network setup

his technical savvy

other users who may have had access to the computers or network

The court denied plaintiff’s request for leave to engage in the expedited discovery. It found that unlike other copyright cases in which anonymous infringers were identified, the efforts in this case “went far beyond seeking to identify a Doe defendant.” Instead, the court observed, it would be “a full-on deposition during which [the account holder] who plaintiff admits is likely not represented by counsel, may unwarily incriminate himself on the record before he has even been named as a defendant and served with process.”

The judge in one of the well-known mass copyright cases filed by Dunlap, Grubb & Weaver a/k/a U.S. Copyright Group (West Coast Productions v. Does 1 – 5,829) has issued an order denying motions to quash filed by several of the unnamed defendants. Plaintiff had served subpoenas on the ISPs associated with the IP addresses allegedly involved in Bittorrent activity, seeking to learn the identity of those account holders.

The ruling is potentially troubling because the court refused to even consider the arguments presented by those anonymous parties who did not reveal their identity in connection with the motion to quash. Such an approach undermines, and indeed comes close to refusing altogether to recognize any privacy interest that a person may have concerning his or her ISP account information.

The court observed that the Federal Rules of Civil Procedure require that a party must identify himself or herself in the papers filed with the court. In some situations, however, a court may grant a “rare dispensation” of anonymity after taking into account the risk of unfairness to the party seeking anonymity as well as the general presumption of openness in judicial proceedings.

In this case, the court noted that other courts had “uniformly held that the privacy interest in [ISP account] information is minimal and not significant enough to warrant the special dispensation of anonymous filing.”

Absent from the court’s analysis was the potential for harm to defendants who were the subject of these subpoenas but might have the ability to demonstrate (anonymously) that they were not involved. In cases involving adult content, in particular, the harm of being publicly associated with that content — even if the association turns out to be in error — is one that should not be disregarded in this way. Moreover, taking away the ability of an anonymous defendant to challenge his unmasking will encourage extortionate-like behavior on the part of copyright plaintiffs hoping to extract a settlement early in the case. If writing a check is the only way to keep from having to turn one’s name over (and this case pretty much establishes that rule), then more settlements should be expected.

The court went on to reject the arguments in favor of motions to quash filed by John Does who had provided their contact information to the court. The court found that it was premature to rule on any objections based on a lack of personal jurisdiction because the defendants filing the motions had not actually been named as a party. And the court rejected the arguments that the defendants were improperly joined into the action, noting the allegations in the complaint that the IP addresses were involved in a single Bittorrent swarm.

Evan Brown is a Chicago-based attorney practicing technology and intellectual property law. Send email to ebrown@internetcases.com, call (630) 362-7237, follow on Twitter at @internetcases, and be sure to like Internet Cases on Facebook.

This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at jon@jonarogers.com or follow him on Twitter at @jonarogers.

Faconnable issued a subpoena duces tecum to Skybeam, an Internet Service Provider, requesting identifying information about the users associated with two different IP addresses. A magistrate judge denied Skybeam’s motion for protective order, and required Skybeam to provide the requested information. Skybeam sought review of the denial of the protective order with the district court, asking for a stay of the magistrate’s order requiring the disclosure of the information. The court granted the motion to stay.

The court looked at four factors to determine whether it was appropriate to issue a stay against providing the information.

the likelihood of success on appeal (to the district judge)

the threat of irreparable harm if the stay or injunction is not granted

the absence of harm to opposing parties if the stay or injunction is granted

any risk of harm to the public interest

The court noted that if the last three factors are in a moving party’s favor, the first factor of likelihood of success is given less importance.

The court determined that if the stay were denied, the ISP would have to disclose the Does’ identities, which could impact their First Amendment interests to speak anonymously. However, if the stay were allowed, the ISP could preserve the information for production later, the only harm being a possible delay for Faconnable’s suit.

The court found that, on balance, the risk of losing First Amendment freedoms was a greater harm than delayed litigation.

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Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).